Botelberghe v German State

JurisdictionBélgica
CourtUnspecified Court (Belgium)
JudgeD'Hoe,Wylleman,Forrier

Belgium, Regional Court, Ghent

(D'Hoe, Associate Judge, Presiding; Wylleman and Forrier, Judges)

Botelberghe
and
German State1

State immunity — Jurisdictional immunity — Acta jure imperii — Acts of armed forces in armed conflict — Whether attracting immunity — Whether crimes against humanity capable of constituting acta jure imperii — European Convention on State Immunity, 1972, Articles 11, 31 and 35

War and armed conflict — Crimes against humanity — Whether State entitled to immunity in action for crimes committed by its armed forces — The law of Belgium

Summary: The facts:—The plaintiff brought two actions against Germany relating to violations of humanitarian law allegedly committed during the Second World War.

Held:—The Court lacked jurisdiction as Germany was entitled to immunity. Although not applicable to the case, the European Convention on State Immunity, 1972, afforded guidance as to the state of international law. It was clear from Articles 31 and 35(3) of that Convention that the Contracting States regarded immunity for the actions of their armed forces on the territory of another State as an established fact and were not prepared to compromise it.

The following is the text of the relevant part of the judgment of the Court:

5.3 The equality and sovereignty of states, as well as the jurisdictional immunity based thereon, are fundamental principles of customary international law.

In principle, this means that no state may exercise jurisdiction over another sovereign state (par in parem non habet jurisdictionem) and no state may exercise authority over another without its consent.

The parties are in disagreement over the applicability of the limits placed on this principle in the course of the years by international treaties, legal theory and case law.

The plaintiff invokes the difference between what are known as “acta jure imperii” and “acta jure gestionis”. The former refers to actions by a state in the exercise of its powers as a sovereign state, for which immunity is beyond doubt; the latter refers to actions in which the state is regarded as a private person for whose actions there would be no immunity.

The plaintiff argues that the actions on which his claim is based are crimes against humanity which cannot under any circumstances be accepted as “acta jure imperii”.

The defendant points out that even in such a case only the possible immunity of the individual perpetrator and not that of the state could be called into doubt.

Although the...

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